JETHMAL SINGH Vs. RANJEET SINGH
LAWS(RAJ)-1952-10-11
HIGH COURT OF RAJASTHAN
Decided on October 03,1952

JETHMAL SINGH Appellant
VERSUS
RANJEET SINGH Respondents


Referred Judgements :-

BIR SINGH VS. PIRTHI SINGH [REFERRED TO]
ABDUL GHANI VS. SUBRAMANIA [REFERRED TO]


JUDGEMENT

Wanchoo, C.J. - (1.)THIS is an appeal by Jethmal Singh and others against the decree of Additional District Judge, Jodhpur, in a suit for partition by the plaintiffs-respondents. The suit was filed by five persons, namely, Ranjeet Singh, Virad Singh, Surat Singh, Karan Singh and Lakhji, and they claimed half share in village Moderdi and prayed for partition of their share. The plaintiffs said that the original holder of the village was one Binjaji who had two sons, Baluji and Jagannathji. The plaintiffs claimed to be the descendants of Baluji and said that the defendants were the descendants of Jagannathji. Therefore, the plaintiffs claimed half share in the village Moderdi and prayed for its partition.
(2.)FOUR of the defendants admitted the plaintiffs' claim, namely, Asu Singh, Hukan Singh, Bher Singh and Ajit Singh. The other defendants whose number was twenty-two denied the plaintiffs' claim. They said nothing about the pedigree table; but their case was that though the plaintiffs had some land in village Moderdi, that land was their separate property, and that the parties never held any land or jagir jointly. One of the defendants, No. 26, was a minor and an advocate was appointed on his behalf. The main issue in the case was whether the jagir of Moderdi was held jointly by the parties, and if so, whether the plaintiffs had half share in it. This issue was decided in favour of the plaintiffs. There were some issues on point of law, which were also decided in favour of the plaintiffs and a preliminary decree for partition of the plaintiffs' half share in the property was passed in their favour. Hence this appeal by the defendants.
The first point that has been urged on behalf of the defendants is that the trial court was not right in applying O. I, R. 8 C.P.C. to this suit and, therefore, as all the necessary parties were not joined in this suit for partition, it must fail on account of this technical defect. We propose to decide' this point first before going into the merits of the appeal. It appears that an objection was taken on behalf of the minor defendant, No. 26, that the frame of suit was not proper and, that the suit as framed was not maintainable as O. I, R. 8 did not apply to such a suit. No issue, however, was framed on this pleading and the suit proceeded in the trial court on the footing as if O. I, R. 8 had application to it, and all the necessary parties were before the court.

An application was made by the plaintiffs in the trial court on the 14th of September, 1944, in which it was said that the defendants were the descendants of Jagannathji and that there were many other descendants of Jagannathji whose interests were the same. Therefore, this suit was filed against all the descendants of Jagannathji in a representative capacity and necessary permission was sought under O.1, R.8. On this application, permission seems to have been granted; for a notification was issued in the Jodhpur Government Gazette dated 19th May, 1945. The notice was addressed to Har-Khas-vo-Aam (to all and sundry) and said that "the plaintiffs had filed a suit to the effect that they were owners of half share in village Moderdi, and wanted to get it partitioned and the plaintiffs' counsel had applied that the suit had been filed in a representative capacity, and the matter should be published in the Gazette. Consequently, all and sundry are informed by this notice that if any of them wants to become plaintiff or a defendant in the suit, he should apply by the 8th of August, 1945 after which date no objection would be heard." The first question to which we address ourselves is whether O. I, R. 8 applies to suits of this nature. It reads as follows: - "Order I Rule 8 - (1) Where there are numerous persons haying the same interest in one suit, one or more of such persons may, with the permission of the Court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested. But the Court shall in such case give, at the plaintiffs' expense, notice of the institution of the suit to all such persons either by personal service or, where from the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the Court in each case may direct. (2) Any person on whose behalf or for whose benefit a suit is instituted or defended under sub-rule (1) may apply to the Court to be made a party to such suit."

The contention of the appellant is that O. I, R. 8 does not apply to suits where private title is being litigated like the present suit, and it also does not apply to cases where the number of persons who are plaintiffs or defendants is definite and determinate. It is urged that' O. I, R. 8 should be used only in those cases where the plaintiffs or defendants are very large in number, e.g., members of the Hindu community, or the Jain community, or members of a particular caste, and where the rights in litigation are not private rights of property as in the present case, but more or less, semi-public rights which subsist in a large and indeterminate number of individuals. Learned counsel for the appellants has, however, not been able to cite any authority in support of this view that he is putting forward ; nor are the words of O. I, R. 8 confined to cases where the number of parties is indeterminate and very large, or where the litigation is not confined to private rights of individuals but to some matters of a semi-public nature in which a very large number of persons is interested. The language of the rule, as it stands, is, in our opinion, quite wide, and can apply to all suits of whatever nature or description, provided the conditions set out in it are satisfied. These conditions are that (1) there should be numerous persons & (2) they should have the same interest in the suit. If these two conditions are satisfied, the court has the authority to give permission to sue or be sued or to defend in such suit on behalf of or for the benefit of all persons so interested. In this case, the defendants have certainly the same interest, because their interests are similar though distinct. The suit as framed shows that the defendants together have interest in half village Moderdi and, therefore, even though their interests may be distinct inasmuch as some of them may be in possession of some particular plots while the others may be in possession of others, their interests are similar and, therefore this condition is satisfied.

Then there is the question whether the defendants are numerous. The rule does not lay down any particular number when it can be said that the defendants are numerous, and the courts have to decide on the facts of each case whether the defendants are, in reality, numerous. In Abdul Ghani vs. Subramania (1) (A.I.R. 1929 Madras 44.), it was held that where the numbers of persons interested in the suit was about one-hundred, the case was one to which O. I, R. 8 applied.

In the present case, however, the plaintiffs have not told us what is the approximate number of all the persons interested. They have made twenty-six persons defendants and we know that some of them are minors. In their application all that they say is that the descendants of Jagannathji were large in number. It is not for the plaintiffs to say that the defendants are numerous and, therefore, O. I, R. 8 should apply. The plaintiffs should tell the court, in a case like this, the exact number of the defendants. The matter would be different if the case relates to a whole community, say the Hindu community or Jain community or a particular caste, for obviously there the numbers would be numerous. In this case as the defendants were the descendants of one person and owners of a certain property, it was the duty of the plaintiff to tell the court the exact number of the defendants, and it was for the court to decide whether the number was numerous or not. In such cases if the court comes to the conclusion that the number is not numerous, it will order the plaintiff to make all the defendants parties. If, on the other hand, it comes to the conclusion that the number is numerous, it will give permission under O. I, R. 8. In the present case, however, the plaintiffs have not told us how many more persons there are besides twenty-six defendants who have interest in the jagir of Moderdi. Supposing this further number is only ten or fifteen in the case, the court might have come to the conclusion that if twenty-six persons could be made parties, ten or fifteen more could also be made defendants. The failure, therefore, of the plaintiffs to tell the court the exact number of persons who are interested in the jagir of Moderdi, has led to the result that the court cannot possibly come to the conclusion that the persons interested are numerous. It is obvious that the court cannot accept the behest of the plaintiffs to the effect that the number is numerous. This is a question which the court has to decide for itself and as the plaintiffs have not in this case supplied material to the court for coming to this conclusion, the court could not decide that numerous persons were interested in the jagir of Moderdi, and, therefore, permission should have been given under O.1, R.8. For this reason, therefore, O.1, R.8 should not have been applied to this case.

Let us, however, suppose that the statement of the plaintiffs that the persons interested in the jagir of Moderdi were numerous is correct, we have to see what further steps the court has to take if it decides to give permission under O. I, R. 8, as appears to have been done in this case. In such a case, it is the duty of the court to give notice of the institution of the suit to all such persons either by personal service, or, where, from the number of persons or any other cause such service is not reasonably practicable, by public advertisement. Therefore, the general rule is that the court will give notice by personal service to all the parsons interested. It is only where the court comes to the conclusion that from the number of persons or from any other cause personal service is not possible, that public advertisement is made. In this case, however, the court seems to have presumed that public advertisement is the usual method of notice and to that extent the court was wrong. No order of the court has been pointed out to us by which the court decided the question whether the notice should be by personal service or by public advertisement. We may say atonce that in cases like the present where the number cannot possibly be too large and must be determinate, for we are here dealing with the descendants of a single roan who are interested in a particular property, it is the duty of the plaintiff, even if he makes only some of the descendants parties on behalf of all to give a list of all the defendants so that notice may be served on them personally as required by O.1, R.8. The advantage of this course is that at a later stage it will not be necessary to serve every one and that one service on them is sufficient. But it seems to us very necessary in a case of this kind where the number is determinate that a list of the persons interested should be given by the plaintiffs so that they may be served personally. We may in this connection refer to Bir Singh vs. Pirthi Singh (1) (A.I.R. 1928 Lahore 693.), That was a case for possession of certain land. The number of persons interested in that suit was 79 and three of them were nominated to defend the suit. Personal notice was, however, given to all the defendants, and this we consider is the right method in suits of the kind like the present. Where, however, some of the persons interested are minors, service may be made on their natural guardians, and if this is not possible, public advertisement should be resorted to ; but so far as the majors are concerned, all of them must be served personally in suits like the present. We may of course make it clear that the matter is quite different in cases where the persons interested are indeterminate and innumerable like members of a community, in which case the court can only give notice to them by public advertisement. Here again the failure of the plaintiffs to give a list of other persons who were interested in the jagir of Moderdi, made it impossible for the court to decide whether personal service could and should be effected on them or whether public advertisement was enough. Even, therefore, if O. I, R. 8 was applicable to this case there was no proper service as required under the terms of that rule, as service in this case should, as far as possible, have been personal. It is not in dispute that there are sons of some of the defendants who have not been made parties, and these sons are majors, and it was necessary in this case that these persons should have been personally served under O.1, R.8.

We are also of opinion that the manner in which the advertisement was made in this case was most unsatisfactory and could not be of any use whatsoever in giving notice to the persons interested in this litigation. The notice was in the following terms: "Notice to all and sundry - Whereas the plaintiffs have filed a suit for declaration of a half share in village Moderdi Pargana Phalodi and for partition of their share and the plaintiffs have made an application that the suit has been instituted in a representative capacity and a notice be published in the Gazette : Therefore notice is given hereby to all and sundry that any person who desires to become a party to the suit whether as plaintiff or as defendant should present himself in court on 8.2.1945 and make an application accordingly, failing which no objection will be entertained thereafter." There seems to have been some mis-conception in the mind of the trial court on the question whether the suit was instituted by the plaintiffs in a representative capacity for other plaintiffs and against defendants in a representative capacity for other defendants. The trial court seems to have taken the view that the plaintiffs were suing in a representative capacity on behalf of other plaintiffs and the defendants were being sued in a representative capacity on behalf of other defendants. But paragraph 7 of the plaint shows that the defendants only were being sued in a representative capacity. There was no allegation by the plaintiffs that they were suing on behalf of other persons also who had not been made plaintiffs. The application of the 14th of September, 1944 also only said that the defendants were being sued in a representative capacity. There was no prayer by the plaintiffs that notice should be issued that if anyone wanted to join as a plaintiff he may do so. As a matter of fact, the. pedigree which was filed with the plaint also suggests that in Balooji's branch no person who could be a plaintiff was left out. Therefore, the proper notice to issue on the application of the 14th of September, 1944, was in the name of descendants of Jagannathji, some of whom were being sued in a representative capacity. Further, the notice does not show at all that certain defendants had been sued in a representative capacity and that other defendants who were not made parties to the suit may apply to be joined as defendants. All that the notice said was that the plaintiffs had applied that the suit had been filed in a representative capacity. This, in our opinion, is not enough. The notice should have said that certain defendants had been made parties to defend on behalf of others and these others should have been notified to apply for being made defendants if they so desired. We are, therefore, of opinion that this notice which was issued by the court was defective and was quite insufficient to give notice to the persons interested in this suit that it was meant for them.

It is the duty of courts which take proceedings under O. I, R. 8 to see carefully that proper notice? are issued which would give proper information to the persons interested in the suit so that they might apply for becoming parties. It is also the duty of the court to see that notices, where they are published, are printed in such a paper that the persons interested are likely to read it. This is very necessary as decision in such suits become res-judicata even against persons who were not on the record but who get bound by virtue of proceedings under O. I, R. 8. On considering, therefore, the notice that was issued in this case, we are satisfied that there was no proper notice even by public advertisement under O. I, R. 8, and, therefore, if any other person had to be joined as a defendant in the suit and had not been joined,the defect is not cured by the rather slip-shod and perfunctory proceedings under O. I, R. 8, which were taken by the court below in this case.

It was, however, urged on behalf of the plaintiffs-respondents that even if proceedings under O. I, R. 8 were not properly taken in this case and the plaintiffs, therefore, could not take advantage of those proceedings, the suit could not fail because all the necessary parties were already on the record and only sons of those who were on the record had been left out and these sons were represented by their fathers for the purposes of this partition suit. So far as the sons are concerned, they may be properly represented by their fathers; but the defendants allege that in the line of Dhanji one of the sons of Jagannathji, there was one Khuman Singh son of Ram Singh. This Khuman Singh left three sons, namely, Ratan Singh, Sheonath Singh and Bahadur Singh. Ratan Singh is dead and left two sons Gordhan Singh and Pratap Singh. These four persons, namely, Sheonath Singh,Bahadur Singh, Gordhan Singh and Pratap Singh have not been made parties at all. The respondents' reply to this is that these four persons are not descendants of Dhanraj at all and have no interests whatsoever in the jagir of Moderdi, and are not in possession of any houses or fields in the village as co-sharers.

This is a question of fact and it is not possible for us to come to a satisfactory decision about this question merely on affidavits. If these persons are in fact the descendants of Dhanji and co-sharers in the jagir of Moderdi and have not been made parties, there will be a defect in the suit as certain necessary parties would have been left out, though according to the plaintiffs, the particular line has become extinct. It is necessary, therefore, before we decide whether the suit is maintainable as framed and no necessary party has been left out, that this question of fact be gone into in the trial court We, therefore, frame the following issues and send the record back to the lower court for decision and return of its findings within three months : (1) "Whether Ram Singh son of Madroopji in the line of Dhanji had a son Khumji or Khuman Singh, and whether Khuman Singh had three sons Ratan Singh, Sheonath Singh and Bahadur Singh, and further whether Ratan Singh had two sons Gordhan Singh and Pratap Singh? (2) If the answer to the question is in the affirmative, whether these persons or any of them have any subsisting interest in the jagir of Moderdi?"

The appeal will be fixed for re-hearing on receipt of the findings.



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